Sometimes doing the right thing is the wrong thing for employers

There are two equivalent expressions which often arise in my practice: “No good deed goes unpunished” and “The road to hell is paved with good intentions.”

I can figuratively envisage thousands of employers nodding regretfully as they read this.

In my decades of practice, I have observed that employers almost always try to do the right thing. Their execution may not be perfect, but the intention is almost always beneficent. Employee counsel will argue that they do so only to avoid adverse court judgments. Although obviously motivating, that is unfair and untrue.

In preparing for a court case, I try to portray a narrative which a judge will positively respond to on a human level. I remind my clients in preparing that judges are people, too, with the same range of emotions and the desire to do right that the rest of us have. To the point, so are employers and they also want to view themselves, as individuals, in a favourable light.

But sometimes “doing the right thing” is the wrong thing.

Here are some examples.

I am writing this on my way back from a human rights hearing in Edmonton. The employee made a claim of gender discrimination based on facts which were erroneous because he had inaccurate information. The parties had attempted to resolve the dispute, the employee was intractable in his position and relations had become so acrimonious that the team in which the employee worked had become dysfunctional.

In the mediation, I pointed out the clear facts, some of which the employee had been unaware of and which vitiated any human rights claim he might have had. But given that we were at mediation, I converted the discussion into one of severance since the relationship had broken down.

The employee pointed out that my allegations about his conduct, which were serious, had never been put forward in writing. He was correct.

Why was that? Once the employee filed a human rights claim, his employer backed off from appropriate discipline for fear that it would be seen to be retaliation for the filing of the claim. But given the evidence in its possession, by failing to discipline the employee it had condoned the misconduct, now making it very difficult to discipline and legally impossible to assert the cause for discharge that might otherwise have been alleged.

This reluctance to discipline arises in many contexts.

Employers often fail to discipline because the employee provides a doctor’s note. But, unless and only in the circumstance that the medical issue is psychiatric and caused the misconduct in question, a doctor’s note is not a defence to bad conduct.

What is a defence to bad conduct is an employer condoning the misconduct by failing to discipline at the time that the conduct occurs.

Employers also often fail to discipline when an employee turns the tables and accuses it of harassment, however frivolous. Employees are often told to do this or to produce doctors’ notes by questionable employee counsel in response to justifiable discipline, specifically designed to place the employer on the defensive. Harassment has such a toxic connotation that most employers resile in fear from that allegation and then leave the employee alone, in the same way that they back off when an employee claims to be ill.

It is misguided in both circumstances. By doing so, not only are you keeping on an employee who is best rehabilitated or dismissed but setting a very bad example to your other employees about what will be tolerated. Nothing encourages other employees to quiet quit (or worse) than seeing their coworkers do so without consequence.

Employers should know that, unless the misconduct is caused by the alleged illness, it is essential to continue to manage misconduct. Similarly, if the allegation of harassment is frivolous after a thorough review, it is not a “get out of jail” card for any employee who alleges it.

Another mistake employers make is providing unwarranted positive feedback to employees with performance issues who should, instead, be on a termination track. Since you usually wish to rehabilitate rather than terminate, warranted positive comments are necessary and useful — but employers must keep their eyes on the ball. Such encouragement should be prefaced, if this is the case, with the fact that the overall performance is deficient and the employee is in danger of dismissal for cause if they do not improve in specific ways. Otherwise, those positive comments will be pulled out by the employee claiming that, because of them, they had no idea that they were at risk of being dismissed thereby vitiating any cause allegation.

Similarly, some employers have a style where they simply can’t resist saying positive things even when not particularly warranted. Curb your enthusiasm.

Another mistake employers make in the same vein is becoming friends or developing social relationships with their employees and then either being unable to discipline them or not seeing them as they really are. This happens most frequently with managers who have risen through the ranks and retained their friendships.

Yet another example is providing employees with their annual compensation increase without realizing that this too can condone misconduct and provide the employee with the defence that they had no reason to believe that their job was in jeopardy. Employers often have difficulty writing the type of performance appraisal that will lead to dismissal. But anything less will not suffice.

Many employers are simply nice people who have difficulty providing the tough love necessary to build up a case for cause. They prefer to freeze people out and avoid them rather than proceeding through progressive discipline. They will always regret it.